What If the V.P. Resigned in the First Two Weeks?

With all the election fun an odd thought occurred to me: What if a Vice President resigned in the first two weeks after an inauguration? This idea is not a Palin or Biden dig. It just seems odd that one could add someone to a ticket so that a certain group is appeased, but then that person could resign for personal reasons or a truly cynical party or executive could wait a little time and then have the V.P. leave office. I don’t think that one would have standing or a cause of action, for as my colleague, Bryan Wildenthal, noted, one might say that this possible outcome is clear in the Constitution so one votes with that in mind. As a practical matter, a party that tried a bait and switch would lose face and probably so much ground that they might have to change their name (It has been some time for a name switch, but it a little re-branding might help on many fronts—hmm an idea for another time). So the V.P. is irrelevant; yet not. Bryan reminded me that the VP position provides a great stepping-stone to the Presidency. Still, as it stands the ticket systems seems open to challenge or reform.

In fact, Bryan had an interesting idea. I am paraphrasing his email, but he suggested that the current practice is too unilateral as it allows the nominee to select the V.P. without broad vetting and approval. He floated one possible idea: amend the Constitution so that the Secretary of State is next-in-line. This approach would make sure that the position was vetted and approved by the Senate. Insofar as one thinks that the approval would be pro forma, one should consider that both sides would be quite invested in the choice of Secretary of State if that spot was also a next-in-line for the Presidency.

Some could argue that this approach takes the people out of the equation, but I think that they already are. And even if one adapted Bryan’s idea and kept the V.P. but with vetting and approval by the Senate, one might have a useful hybrid: the people would have their President but the Senate would have a voice as to who might be next. Would there be wrangling? Sure. But given that the current system does not allow or require that the V.P. run in the same way as the President, the Senate arguably would have a more representative voice than in place now.

So there it is, an odd thought problem for Labor Day.

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Deven Desai

Deven Desai is an associate professor of law and ethics at the Scheller College of Business, Georgia Institute of Technology. He was also the first, and to date, only Academic Research Counsel at Google, Inc., and a Visiting Fellow at Princeton University’s Center for Information Technology Policy. He is a graduate of U.C. Berkeley and the Yale Law School.
Professor Desai’s scholarship examines how business interests, new technology, and economic theories shape privacy and intellectual property law and where those arguments explain productivity or where they fail to capture society’s interest in the free flow of information and development. His work has appeared in leading law reviews and journals including the Georgetown Law Journal, Minnesota Law Review, Notre Dame Law Review, Wisconsin Law Review, and U.C. Davis Law Review.

“Thanks to gaps in election rules, they say, the double assassination of a presidential ticket just before Election Day would create chaos, with voters unsure who they were actually voting for. If terrorists killed the winners just afterward, the Electoral College would be left without any clear directive. Either scenario could lead to a crisis of democratic legitimacy that would make the 2000 Florida recount pale in comparison.”

Replace “assassination” with “resignation” and I have a sense the same chaos would ensue. Perhaps the only “neutral” solution is to appoint a caretaker, via 25th amendment-type procedures, for a year until there could be a national vote.And perhaps use the 12th Amendment (states voting by delegation to the house) to choose the caretaker.

To Frank’s last paragraph: Current law already provides your “neutral” solution. The Speaker of the House becomes acting president under 3 U.S.C. § 19(although some have raised constitutional concerns with this) on January 20. Alternatively, since most cabinet posts remain filled by secretaries (or at least “acting” secretaries) from the prior administration, they also remain in the statutory line of succession and could become acting president on January 20. Yes, this has extreme partisan and democratic legitimacy problems. And, since there is no provision in federal law for a special presidential election, Pelosi or the former Bush cabinet officer would remain in office for a full four-year term.

But I suspect that the worst anti-democratic and partisan excesses would be avoided by manipulating the system. So suppose Pelosi must become acting president on January 20. I imagine the following happening: She would nominate a VP from the party that had won the presidential election (presumably with consultation of party leaders), who then would be confirmed by Congress. Pelosi then resigns as acting president (or is pushed out by the new VP’s prior position in the line of succession) and we get a President who at least is from the same political party as the election. Admittedly not ideal and the fact that bad procedures can be manipulated to resolve problems does not replace actually replacing defective procedures.

One interesting proposal that has been made is to establish a courtesy practice of the outgoing President nominating her successor’s cabinet officers, who can be quickly confirmed by the new Senate. Then, should anything happen to the President and VP prior to January 20, that cabinet officer (who has *some* democratic legitimacy by his selection by the President-elect) can assume the presidency.

I’m not sure I understand how the Secetary of State idea improves over the curent system described in Section 2 of the 25th Amendment. That clause provides that in the case of a Vice-Presidential vacancy, a replacement is nominated by the President subject to majority approval in both houses of Congress. The Secretary of State as successor is subject only to approval by the Senate. So you would be substituting a system of approval by both houses with one of approval by one house. How is that an increase in review and accountability?

I’m confused by the last sentence of Howard’s post: regardless of the approval of any Cabinet officers before the inauguration of the President-elect, aren’t the Speaker and then the President pro tem of the Senate ahead of them in the line of succession? What does early approval of Cabinet officers accomplish, in succession terms?